The General Medical Council has published new guidance titled ‘Decision making and consent’. This guidance comes into effect on 9 November 2020 and replaces the 2008 guidance, ‘Consent: patients and doctors making decisions together’.

The new guidance is relevant to every health and care decision that a doctor makes with a patient and reaffirms consent as a fundamental legal and ethical principle underpinning good practice. Doctors must be satisfied that they have a patient’s consent or other valid authority before providing treatment or care and the purpose of the guidance is to help doctors meet this standard.

Those familiar with the 2008 guidance will appreciate that the changes in the updated guidance are nuanced. This reflects the fact that the fundamental law on mental capacity and decision making is now well established across the UK and only minor tweaks are taking place as case law develops.

Nonetheless, the new guidance is better structured and shorter, making it more accessible and easier to digest. It also identifies seven key underlying principles of decision-making and consent which provide a helpful summary for those wanting a quick overview (page 7).

What else is new?

The guidance asks doctors to adopt a proportionate approach in its implementation. It is clear that not every paragraph will be relevant to every decision and that professional judgment on applying the guidance will need to be based on the specific circumstances of each decision (paragraph 5). The guidance also provides a useful checklist for routine, quick, non-invasive procedures where it may be reasonable for a doctor to rely on a patient’s non-verbal consent (paragraph 7).

The updated guidance provides a greater focus on the patient doctor dialogue which is central to good decision making (paragraph 8) and should be tailored to each patient. A new section (paragraphs 16 to 20) assists doctors in finding out what matters to a patient by requiring them to explore their needs, values and priorities and their wishes and fears about their health. Such information will allow doctors to avoid assumptions and better understand what information their patient might require to assess treatment and care options and ultimately make an informed decision.

There is also a new section (paragraphs 25 – 26) providing guidance to doctors on how to deal with uncertainty in a diagnosis, a treatment or the evaluation of an option in the decision making process. This requires doctors to be honest with a patient about any uncertainty and to be clear about the limits of their own knowledge when answering questions.

The new guidance adopts the term ‘relevant information’ used in the Mental Capacity Act 2005 and associated Code of Practice and emphasises that relevant information should be shared with patients in a way they can understand and retain. Further detail is provided on how this could be achieved which includes accommodating a patient’s wishes if they would like to record the discussion or using a translation service (paragraph 27). The guidance suggests a team-based approach for fulfilling a patient’s information needs by drawing on the expertise of team members who may have knowledge of a particular condition, are skilled communicators or who have a good, trusting relationship with the patient (paragraph 41). 

The new guidance also improves on the 2008 version by providing more detail to doctors on how they should anticipate future decisions and how it is important to commence discussions on these in advance albeit recognising that this will be an ongoing dialogue (paragraphs 32 to 39). Any such discussion should be recorded in a patient’s notes including as much detail as practical about the patient’s wishes and fears, their preferences about future options for care and the values and priorities that influence their decision making. If there is a possibility the patient may lose capacity this record should be made, if possible, while the patient has capacity to review it and understand it (paragraph 37).

The updated guidance contains a neater summary of the legal framework, particularly around where a patient might lack capacity to make the decision but also includes advice for situations where doctors may have concern that a patient cannot make a decision freely (paragraphs 69 – 75). Examples are provided of when patients might be vulnerable or susceptible to pressure and the guidance is explicit that doctors must follow local safeguarding procedures if they have concerns that a patient’s rights are being abused or denied.

The full guidance is available here.

We can help

Our team is on hand around the clock to provide urgent legal advice ranging from general advice, to screening as to whether an application to court is necessary, preparing witnesses and evidence and providing legal representation at any hearings. For more information contact Ruth Atkinson-Wilks.

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